L.C. Adami, J.

1. The thirty nine applications covered by this judgment are directed against the orders passed by the Deputy Magistrate Gumla, in the Ranchi district, in 41 cases under Section 145 of the Cr. P. Code declaring the second party, the present respondents, to be in possession of the zerait and bakasht lands in dispute in 39 villages in pargana Barwe, Chota Nagpur. The petitioners, who were the first party to the proceedings, are the Maharaja of Chota Nagpur and his Manager, Mr. Peppe.

2. The history of the Barwe Pargana has been given in the judgment of this Court in the case of Maharaja Pratap Udai Nath Sahi Deo vs. Ganesh Sahu (1921) Pat. 369 and the finding in that case cannot now be contested. It has been found that to the year 1799 it was established and recognised that the Barwe Estate was a dependency of the Chota Nagpur Raj, and that the Raja of Barwe who in that year was Deo Sahi, held a putra putradi jagir terure under the Maharaja of Chota Nagpur which was resumable by the Maharaja on failure of male hairs of the original grantee. In 1853 Lachminath Sahi Deo, the last of the line of the Deo Sahi, died without male issue and the Maharaja then resumed the tenure. In 1855 the Maharaja made a life grant of the pargana to Lal Sahi, excluding however six villages and inc easing the rent. Lal Sahi died in 1860 and the Maharaja could have then resumed the tenure but instead he allowed Raghbir, the son of Lal Sahi, to continue to hold the tenure. On Raghubir's death, on the 26th January, 1914, the Maharaja instituted a suit for resumption of the tenure claiming that Raghubir held a grant for the term of his life only. He joined as defendants Ganesh, the son of Raghubir, and the son of Ganesh and also Nibaran Chandra Chatterjee, who had obtained a mineral and forest lease from Raghubir. The result of that suit was that it was declared on appeal to this Court, in the judgment I have cited above, that Raghubir held a life tenure only, which was resumable on his death. The decree of this Court after declaring the right of the Maharaja to resume pargana Barwe land to be put in possession of the whole of the pargana directed that he should be put in possession thereof by evicting the defendants. The decree was passed on the 29th of March, 1920. The Maharaja took out execution of the decree. In the order sheet at first the direction was that possession should be delivered under Order 21 rule 35 but evidently this was afterwards changed, the figures 35 being crossed out and the figures 36 substituted therefor. Writs for delivery of possession were issued, hearing the heading that they were made under Order XXI rule 35. In August 1920 possession was delivered to Mr. Peppe, Manager of the Maharaja, of all the villages covered by the decree, not by actual eviction but by beat of drum and the affixing of notices at conspicuous spots in the villages. This possession was peacefully obtained, but in the year 1921, when the Manager of the Maharaja sought to sow or cut the crops on the lands which are now in dispute, he was opposed by the present respondents who claimed that they were in possession of those lands under agreements and leases granted to their predecessors by Lal Sahi and earlier holders of the Barwe pargana.

3. Their contention was that in respect of the zerait and bakasht lands in 25 of the villages one Lachmi Singh had held them as tenant of the holders of the Barwe pargana previous to Lal Sahi and that Lal Sahi, on consideration of Lach man's services to him, executed a document called an ahadnama, which was registered whereby he continued Lachman in his tenancy of the land and settled that the tenancy should devolve on the eldest legitimate male heir or, failing such heir, on the eldest legitimate female member of the family, or, failing a female member, on the eldest illegitimate male member of the family. Lachman died leaving a widow Meghrani, and an illegitimate son, Guru Prasad. Meghrani succeeded Lachman in possession of the lands but had a dispute with Guru Prasad who sued her to restrain her alienation of the property. In 1896, probably in settlement of the dispute, Meghrani leased for her lifetime 31 villages to Guru Prasad. Two of these villages were not covered by Lal Sahi's ahadnama. Guru Prasad died in 1941 and Meghrani Kuer in April 1921. Guru Prasad left two widows, Bhayani Sundarbans Kuer and Bhayani Kailash Kuer, and these two ladies are the second party who dispute the possession of the Maharaja over the lands which they claim to have inherited from their husband, Guru Prasad.

4. With regard to the lands in the other 15 cases the Respondents, 2nd party, based their claim on confirmatory pattas granted to them by Lal Sahi and others.

5. As I have mentioned above, in 1921 there were several criminal cases between the parties regarding the possession of the lands, culminating in a fracas in which police officers were severely beaten. The police asked that, as there was likelihood of a further breach of the peace, proceedings should be taken. Separate proceedings were drawn up in respect of each village in which the disputed lands lie.

6. It was agreed that all the cases should be heard together and further, when the parties had each filed documentary evidence they declined to give any oral evidence of possession, it being agreed that the Maharaja 1st party should get possession of what he was entitled to Tinder the decree of the High Court. The learned Deputy Magistrate remarked in his judgments that this course was most reasonable as delivery of possession had been given to the Maharaja only in 1920 and there had, admittedly, been no change of possession since then. The Deputy Magistrate delivered one judgement covering 25 villages alleged to be mentioned in the ahadnama, and 15 other judgments in cases where the 2nd party relied on confirmatory pattas.

7. Now, at first sight, the procedure adopted by the Deputy Magistrate on the agreement of the parties would seem contrary to the provisions of the Section 145 Cr. P. Code which requires a decision as to actual possession at the date of the order or within two months of it without reference to the merits of the claims of the parties to a right to possess the subject of dispute, for it was agreed not to call evidence of actual possession. But in these cases it seems clear that what the Deputy Magistrate and the parties aimed at was, first to find out whether there was jurisdiction to decide the dispute under Section 145. If it was found that the 2nd party were bound by the resumption decree obtained by the Maharaja shortly before, and that possession of the disputed lands was given in execution of the decree, then the Deputy Magistrate would have no jurisdiction to entertain the proceedings under Section 145, or to decide in favour of the 2nd party, for it has been held consistently that a recent delivery of possession by a Civil Court binds a Criminal Court in disputes as to possession, and the Court must uphold that possession. If, on the other hand, the Deputy Magistrate was satisfied that the 2nd party was not bound by the decree and that possession had not been delivered to the 1st party in execution of the decree, then on the admission of the parties the second party having been in possession up to the date of the supposed delivery of possession, and there having been no change of possession since then, the second party must be declared to be in actual possession.

8. The learned Deputy Magistrate considered the effect of Section 14 of the Chota Nagpure Tenancy Act, 1908, under which the 1st party claimed that the under-tenures in the disputed lands were annulled by the resumption decree; he conceded that, if the under-tenures had been granted by Raghubir Sahi whose jagir tenure had been resumed under the decree Section 14 would have operated and the under-tenures would have been annulled, but he pointed out that the under-tenures were confirmed by Lal Sahi in 1860 under the ahadnama, and had existed from before his time having been obtained by inheritance and self-acquisition; he held that Section 14 would not permit the resumption of the under-tenure on the resumption of the tenure of Lal Sahi "who had a life interest and got the tenure subject to all the encumbrances and under-tenures existing since before his time, much less could the resumption of Reghubir's life-grant affect it."

9. The learned Deputy Magistrate held that the decree would not bind the under-tenure holders, because they were not made parties to the suit. He was much impressed by the fact that the Maharaja joined only one under-tenure holder as a party defendant, namely, Nibaran Chandra Chatterjee, who had obtained a forest and mineral lease from Raghubir, and argued that the Maharaja understood that Section 14 alone would not help him and that, to get rid of an under-tenure, he must join the under tenure-holder as defendant in the resumption suit. He held that the Maharaja can not now go beyond his plaint and claim to dispossess the other under-tenure holders, add that the other under-tenure holders were not affected by the decree. He noticed too that the 2nd party were entered as under-tenure holders in the record of rights finally published in 1909 and that the Maharaja had taken steps to have the entry altered in one case only arguing that the Maharaja, if he had any objection against the other entries, should have pressed it at the same time. With regard to the delivery of possession he was of opinion that, if the Maharaja was resisted in taking possession, his proper course was to proceed under Rules 97 and 98 of Order 21 C.P.C. and to go to the Civil Court for an order. He held that the delivery of possession under the decree was effected under Rule 35 of Order XXI and not R. 35 and that, as delivery of possession under Rule 36 affects only the parties to the suit and not a third party, there was no delivery of the under-tenures in possession of the respondents as they were not parties to the decree. He then found that even if the two ladies of the 2nd party had no right under the akadnama, and their tenure was resumable, the 1st party must establish his claim in the Civil Court Finally he came to a finding as to actual possession, namely:-

Lastly Ex. B Judgment of the High Court and Ex. J, Judgment of the Deputy Commissioner of Ranchi show that the Bhaiyans are in possession of the land in dispute.

10. This is the only finding as to actual possession in the whole judgment. I have perused Ex. B and Ex. J and do not find a word in them to show or even hint that the 2nd party were in possession. I can not think that the learned Magistrate ever read those two documents.

11. The Deputy Magistrate declared the 2nd party to be in possession in all case. Mr. Manuk, on behalf of the petitioners 1st party, argues firstly that the Magistrate had no jurisdiction to decide the dispute on title in proceedings under Section 145 and that the agreement of the parties cannot confer jurisdiction, He points out that no witnesses were examined on either side.

12. I have pointed out earlier in this judgment that, having the Civil Court decree and the writ of delivery of possession before him, it was necessary to decide whether the 2nd party were bound by the decree, or possession was actually delivered by the Civil Court according to law to the 1st party so as to dispossess the 2nd party. The point I have to decide is whether the Deputy Magistrate had jurisdiction, or exceeded or abused jurisdiction; if be had it, in fact I have to decide whether the under tenure were annulled under Section 15 of the Chota Nagpur Tenancy Act and the 2nd party were bound by the decree, and whether in fact possession of the lands was delivered to the first party under the decree.

13. In the first place, the argument of the Deputy Magistrate that, because the Maharaja included one under tenure-holder as a party defendant to his suit, must be held that other under tenure-holders are not bound, is fallacious, Nibaran Chandra Chatterjee held a mining and forest lease and land whereon a mine has been sunk under lawful authority is expressly excepted from annulment by exception (a) to Section 14. Hence it was necessary to make this gentleman a defendant, otherwise on resumption his under-tenure would continue as an encumbrance. It is admitted that the lease of this land was granted by Raghubir, the tenure-holder for life, whose tenure was being resumed, and the arguments used by the Magistrate in the case of the under-tenures of the second party, that they could not be resumed because they were ancient grants, could not apply to the grant to Nibaran Chandra Chatterjee.

14. The most important question is whether section 14 applies to the under-tenures in dispute, and whether they were annulled on the passing of the resumption decree; for on the decision of this question depends the decision whether possession of the lands was delivered to the 1st party so as to put them in such possession as to oust the jurisdiction of the Court in proceeding under Section 145 Criminal Procedure Code.

15. Mr. Hasan Imam shows that up to 1853 there had been a long line of tenure holders, and between 1853 and 1855 there was a resumption by the Maharaja and then in 1855 a grant to Lal Sahi. He argues that when in 1860 Lal Sahi executed the ahadnama it was therein stated that Lachman's under-tenure was continued showing that the under-tenure had been granted from before Lal Sahi's time by some previous tenure-holder, so that the under-tenures are of long standing and of uncertain origin. The answer to this is, I think, that, when on Lachminath's death the Maharaja resumed the jagir tenure all sub-tenures created by the previous jagirdars were annulled and became void, and not merely voidable, I am supported in this view by the judgment of their Lordships of the Privy Council in Beni Prasad Koeri vs. Dudnath Roy (1899) 27 Cal. 156: 26 I.A. 216: 4 C.W.N. 274: 7 Sar. 580 (P.C.). The ahadnama granted by Lal Sahi really was a new grant of an under-tenure by the new tenure-holder, but even were it not, and the under-tenures were granted by a previous tenure-holder and even if it were shown that previous to the enactment of the Chota Nagpur Tenancy Act in 1908, no provisions similar to Section 14 existed' the words of Section 14 as it now stands are clear and plain to the effect that any encumbrance created by the grantee or any of his successors, without the consent and permission of the grantor or his successors-in-interest shall be deemed to be annulled on the resumption of the tenure by the grantor. Mr. Hasan Imam contends that the section doe3 not lay down that an under-tenure granted by a prior grantee of the tenure is to be annulled by the resumption of the tenure of a new grantee. In fact his argument is that, on the resumption of the life tenure of Raghubir, only tinder-tenures granted by Raghubir or at most by his immediate predecessor, Lal Sahi can be annulled. If this argument were to be accepted the words "grantor or his successor in interest" and "the grantee or any of his successors" would be meaningless. The words "grantee or any of his successors" clearly mean succeeding grantees", and under-tenures, whether created by Deo Sahi's direct heirs or by Lal Sahi or Raghubir who successively held the tenures, would be annulled on resumption by the Maharaja after Raghubir's death. Then Mr. Hasan Imam points to the words "without the consent or permission of the grantor or his successor" and urges that it was for the Maharaja to prove that no consent or permission was given. The onus of proving a negative could not be laid on the Maharaja, in cases such as these the likelihood is that the grantor would have no knowledge of the transfers and grants made by the tenure-holder. It is nowhere shown that consent or permission was given.

16. It is next argued that Raghubir did not hold under a grant but merely by indulgence and that the annulment of the under-tenure should have been made at the time of Lal Sahi's death, and after that Section 14 could not apply to the under-tenure. The answer to that is that this Court has held that Raghubir held a tenure for life which was resumable, and so Section 14 will apply. The argument that it can never have been intended that an under-tenure which had existed from before the grant to Lal Sahi should be liable to annulment, as this would be a hardship, can be met by the answer that if the under-tenure had been granted by Deo Sahi himself and Deo Sahi's family had held in direct succession up to 1920 and then failed in the male line, under Section 14 any under-tenure granted in the first instance by Deo Sahi and held by the under-tenure holders in succession up to 1920 would be annulled under section 14 in spite of the fact that the under-tenure had been in the family for so long a time.

17. There is nothing; to show that the under-tenure which Lal Sahi stated in the ahadnama of 1860, had existed previously under the previous grantee of the tenure, was in any way recognised by the Maharaja between 1853 and 1855 or that it was treated as otherwise than annulled when the Maharaja in 1853 resumed the tenure.

18. The very fact that Lal Sahi and the under-tenure holders found it necessary that an ahadnama or confirmatory patta should be executed to continue the sub-tenancy which had been granted by Deo Sahi or one of his successors shows, in my opinion, that the parties to the ahadnama and pattas recognised that on the resumption in 1853 the under-tenure had been annulled, and that it was in the power of Lal Sahi to refuse to recognise it. As the ahadnama shows, Lachman had performed some good service for Lal Sahi and it was for that reason that the latter agreed to execute the deed. The ahadnama and the patta were new grants. Deo Sahi or any of his successors could not create an under-tenure to exceed in duration the subsistance of their own tenure. Even though Section 14 of the Chota Nagpur Tenancy Act had not been enacted in 1860, when the tenure held by Deo Sahi's line ended any sub-tenure created by him or his successors must necessarily come to an end too.

19. Now if the grant of the sub-tenure was by Lal Sahi, who had a life interest, he could not grant the sub-tenure to exceed the period of his life, and when he died the sub-tenure came to an end. Raghubir, his successor, was allowed to continue as tenure-holder by indulgence with a life interest and, without a fresh grant, he recognised the sub-tenure but had no power to give that recognition effect beyond the period of his life. Furthermore at the time of his death Section 14 expressly provided that on resumption of the tenures all sub-tenures granted by the grantee of the tenure whom he succeeded should be deemed to be annulled.

20. How ever we look at it whether we treat the under-tenure as first granted by one of the tenure holders previous to Lal Sahi, or whether it is held that the grantor was Lal Sahi, section 14 will apply.

21. I must hold that by the decree of this Court in 1920 the under-tenures claimed by the respondents 2nd party were annulled under section 14 of the Act, and that the second party were bound by the decree to that extent. The argument put forward by the Deputy Magistrate that they were not bound because they were not made parties to the resumption suit cannot stand, and I have pointed out that the reasons stated by the Magistrate are fallacious.

22. The learned Magistrate seemed to think that because the second party were entered in the record-of-rights, finally published in 1909, as under-tenure holders and the Maharaja did not put in any objection to those entries but only objected to the entry of Raghubir as holding a putra putradi interest, and succeeded in having that entry changed to a life interest, the Maharaja must be held to have acquiesced in the claim of the second party to be under-tenure holders, and he was precluded from annulling their under-tenures. The Maharaja's conduit would show no such intent. Raghubir was still alive in 1909 and during his life could grant any under-tenures he liked, and the Maharaja knowing that these under-tenures would be annulled on the expiry of Raghubir's life-interest had no good reason to object at that time to the entries in the record-of-rights, while to allow the entry of a putra putradi jagir in favour of Raghubir would have the effect of preventing resumption of the tenure.

23. Having found that the under-tenures of the second party were annulled by the resumption decree, it remains to be decided whether the Maharaja, first party, obtained delivery of possession of the disputed lands under the decree. It is argued that the order sheet in the execution proceedings shows that it was directed that possession should be delivered under rule 36 of Order, 21 that is to say, symbolical possession should be given which would not operate as actual possession against third persons who were not parties to the decree. Under rule 35 actual delivery is given by eviction of the person bound by the decree if he refuses to vacate. It is plain that at first the order of the Subordinate Judge was that possession should be delivered under rule 35 and in fact the writs were drawn up under rule 35 as shown by their heading, but afterwards the figures in the order-sheet were altered to rule 36 and possession was delivered in the manner prescribed in rule 36.

24. Now rule 36 refers to "Immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree."

25. It can hardly be said that after the decree for resumption the second party under-tenure holders, were entitled to occupy the lands and were not bound by the decree having in view the provisions of section 14. This was a case in which actual possession should have been delivered, but by reason of the size of the Barwe pargana and the multitude of villages and under-tenures it would have been well high impossible to give actual possession by eviction. The High Courts of Calcutta and Madras, in Hari Mohan Shaha v. Baburali [1897] 24 Cal. 715, and Govind v. Venkata Sastrulu [1907] 17 M.L.J. 598 in dealing with questions of limitation have held that where symbolical possession is delivered in a case where actual possession ought to have been delivered the symbolical possession will operate as actual possession. The delivery of symbolical possession even erroneously operates as actual possession against the judgment-debtor and his representatives.

26. The second party were bound by the decree as they were affected by it under section 14, and as pointed out by Chapman, J. in Bhikhia Jha v. Brij Behari Singh [1917] 2 P. L.J. 478: 1 P.L.W 685: 42 I.C. 526 in regard to order 21, rules 100 and 101, the word "judgment-debtor" will include a representative of the judgment debtor, the word representative" being taken to mean all persons who are bound by the decree. 1 need only refer to the cases of Juggobundhu Mukerjee v. Ram Chunder Bysack (1880) 5 Cal. 584: 5 C.L.R. 548 (F.B.) and Juggobundhu Mitter v. Purnanand Goswami (1889) 16 Cal. 530.

27. I would hold then that at the time delivery of possession was given, the officer of the Court who delivered possession was acting under writs described as being issued under rule 35, though the only possible means of delivery of possession over such a large area as the whole of the zerait and bakshat lands of the Barwe pargana was by beat of drum and the posting of notices as described in rule 36, and that as the second party were bound by the decree, the possession so given had the same effect as actual possession. This possession being possession delivered under the decree of the Civil Court, took away the jurisdiction of the Deputy Magistrate to entertain proceedings under section 145 and declare the second party to be in possession.

28. It has been necessary to deal with the questions raised in this case at great length and to enter into topics which would usually be quite foreign to proceedings under S. 145, but it has been essentially necessary to find whether actual possession was given to the 1st party by the Civil Court and for that purpose to decide whether the second party were bound by the decree.

29. The Deputy Magistrate having found that possession of the disputed lands had not been delivered to the first party, examined no witnesses to prove that the second party were in possession, but in each of his judgments mentions certain documents on which he based his finding as to the second party's possession.

30. So far as I can sea none of these documents proved possession at the time of the order or within two months of it. The record-of-rights was finally published in 1909 when, there is no question, the second party were in possession, and the Maharaja had no reason to question their possession, and I have already pointed out that the two documents Exs. B and J contain no finding or proof of the second party's possession. Rent receipts relied on, in some of the cases she 7 possession up to 1915 only. According to the police reports on which the proceedings started it appears that just before the proceedings started the first party were in possession seeking to cultivate the lands. Having no evidence as to possession at the time of the order or within two months the Magistrate bad realty no jurisdiction to come to a finding that the second party were in possession. He relied on the, agreement between the parties and the admission that there had been no change of possession since the delivery of possession by the Civil Court. The parties cannot confer in the Court by their agreement jurisdiction which it otherwise does not possess.

31. The failure to maintain possession delivered by the Civil Court under its decree amounts to an error of jurisdiction which vitiates the order of the Deputy Magistrate. I accordingly set aside the order in all the proceedings covered by this judgment.

32. The paddy which has been attached by the order of the Court will now be released from attachment.